Legal Rights

20 Section 11(c): Protection Against Testimonial Compulsion

Provision

11. Any person charged with an offence has the right:

c.  not to be compelled to be a witness in proceedings against that person in respect of the offence;

Similar provisions

Other Canadian legislation

The section should be read in conjunction with section 13, which protects against the admission of self-incriminatory evidence in a subsequent proceeding. Additionally, section 7 provides a residual protection against improperly compelled testimony. This paragraph is also similar to paragraph 2(d) of the Canadian Bill of Rights.

International human rights instruments binding on Canada

This paragraph is similar to article 14(3)(g) of the International Covenant on Civil and Political Rights.

Purpose

Paragraph 11(c) recognizes the importance of individual autonomy and the right not to be forced to be a witness against oneself. Every person has the right to remain silent, and in the criminal process, it is a basic tenet of justice that the Crown must establish a “case to meet” before there can be any expectation that the accused should respond (R. v. P.(M.B.), [1994] 1 S.C.R. 555).

Analysis

1. Charged with an offence

See discussion under the general section 11 heading.

2. Scope of protection

Three conditions must be met for a person charged with an offence to benefit from the protection against self-incrimination under this provision: (1) the person must be compelled to be a witness (2) in proceedings against that person (3) in respect of the offence (Martineau v. MNR, [2004] 3 S.C.R. 737 at paragraph 68).

3. Any person

A corporation cannot be said to be a witness and as such, it does not benefit from the protection of paragraph 11(c) (Amway Corporation v. Canada, [1989] 1 S.C.R. 21).

4. Compelled to be a witness

Paragraph 11(c) protects the accused from oral or testimonial compulsion (Amway Corporation, supra at 40). It does not have any application to physical or bodily proof like compulsion to produce documents or other forms of self-incriminatory evidence. Thus, compelling an accused to give fingerprints (R. v. Beare, [1988] 2 S.C.R. 387) or breathalyzer evidence (R. v. Gaff, [1984] S.J. No. 630 (Sask. C.A.), leave to appeal to S.C.C. refused (1986), 15 C.C.C. (3d) 126) does not engage this section. Moreover, the introduction into evidence of the accused’s private journals does not engage paragraph 11(c) (R. v. Anderson, [2002] O.J. No. 443 (Ont. C.A.)).

Thus, paragraph 11(c) ensures that an accused is free to choose to testify or not, because his or her silence cannot be used as evidence of guilt (R. v. Noble, [1997] 1 S.C.R. 874; R. v. Prokofiew, [2012] 2 S.C.R. 639).In cases where there is a realistic concern that the jury may hold an accused’s silence against him or her, such as where a cut-throat defence has been advanced by a co-accused testifying and pointing the blame at an accused who remains silent, a corrective instruction affirming and explaining the right to silence may be required (Prokofiew, supra at paragraph 3). However, while silence is neither inculpatory, nor exculpatory, if the trier of fact reaches a belief in guilt beyond a reasonable doubt, silence may be treated as confirmatory of guilt (Noble, supra). It is also permissible for counsel whose client has testified to refer to this fact to suggest that it indicates the client is innocent and has “nothing to hide” (Prokofiew, supra at paragraphs 5, 99).

The existence of a mere tactical pressure on an accused to participate in a trial does not offend the principle against self-incrimination (R. v. Darrach, [2000] 2 S.C.R. 443 at paragraph 50; R. v. Wood, 2001 NSCA 38). While the admission into evidence of physical or other non-testimonial evidence might make the Crown’s case stronger, this does not create a legal compulsion to testify. If the accused chooses to testify, he or she does so on a tactical basis; the testimony is not a legal obligation (R. v. Anderson, supra).

The term “witness” limits the protection to judicial proceedings. Paragraph 11(c) provides no protection against pre-trial questioning by police (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425).

5. Proceedings against that person in respect of the offence

Paragraph 11(c) solely protects against an accused being compelled to enter a witness-box to testify against him or herself in a proceeding where that person is charged with a criminal, quasi-criminal or regulatory offence attracting criminal liability or punitive sanctions (R. v. Wigglesworth, [1987] 2 S.C.R. 541 at paragraph 16, on section 11 rights generally). Additional protection against self-incrimination is provided by sections 7 and 13.

Paragraph 11(c) does not prevent a person who has been charged from being compelled to provide testimony at proceedings that are not “in respect of the offence”. Where a person is involved in civil proceedings (or a coroner’s inquest: Michaud v. New Brunswick (Minister of Justice) (1982), 3 C.C.C. (3d) 325 at paragraph 6 (N.B.Q.B.)) arising out of the same facts as the criminal proceeding, the section does not prevent the compellability of the witness at the civil hearing or on discovery (Seaway Trust Co. v. Markle, [1991] O.J. No. 205 (Ont.Ct.J.G.D); Belanger. v. Caughell (1995), 22 O.R. (3d) 741 (Ont. Ct. J.G.D.); Tardif v. Halifax Shipyard, 2002 NSCA 27). Where, however, the court is satisfied that answers to questions asked on discovery would point to derivative evidence and assist the prosecution, it may give appropriate directions (Saccomanno v. Swanson (1987), 49 Alta. L.R. (2d) 327 (A.B.C.A.)).

Similarly, paragraph 11(c) does not prevent a person who has been charged with an offence from being called at the preliminary inquiry or trial of another accused separately charged with the same offence (R. v. Mazur (1986), 27 C.C.C. (3d) 359 (B.C.C.A.), leave to appeal to SCC refused, [1986] 1 S.C.R. xi; R. v. Altseimer (1982), 38 O.R. (2d) 783 (Ont. C.A.)). Where, however, the Crown proceeds with both matters jointly, the Crown waives the right to call one accused against the other (R. v. Clunas, [1992] 1 S.C.R. 595), as paragraph 11(c) is engaged.

Where Parliament has required a person to bring an action to challenge a government decision that amounts to being “charged with an offence” within the meaning of section 11, such a proceeding is still “in respect of the offence” even if the person is technically a plaintiff/applicant and not an “accused” (Martineau, supra at paragraphs 80-86).